This week, the Economic Policy Institute published an analysis of the growing role state attorneys general (AGs) play in enforcing workers’ rights. Authored by Terri Gerstein, who heads the State and Local Enforcement Project at Harvard Law School’s Labor and Worklife Program, the report examines state enforcement actions since 2018, including initiatives that protect workers during the coronavirus pandemic. The report focuses on efforts to combat wage theft, employee misclassification, and improper noncompete contracts among other key issues.
The report offers both analysis and instruction; the progress in certain states reflects a first step toward remedying decades of under-enforcement. Gerstein reports that “only 8 states & the District of Columbia have dedicated workers’ rights units within state AGs offices,” 6 of which were created in the past 5 years. In early 2018, Politico reported on state-level minimum wage enforcement, tasked to both AG offices and state agencies. The report revealed severe under-investment ; 6 states employed 0 investigators to handle minimum wage violations, and 26 more employed fewer than 10.
The report calls on more state AGs to take an active role in the workers’ rights arena. When properly resourced, state AGs have strategic enforcement advantages– investigating these cases can be extremely complicated; employees risk retaliation or reputational harms; and crucially, states are not bound by arbitration agreements that keep workers out of court. Further, Gerstein notes that common violations like wage theft and misclassification are endemic to particular, often low-wage industries like landscaping or food service, disproportionately impacting marginalized workers.
This week, the Department of Labor issued new guidance further limiting the availability of financial assistance for Americans unable to work due to the pandemic. According to the guidance, parents forfeit eligibility for unemployment insurance and virus-related paid leave if they decide to educate their children from home when the child’s school district offered a choice of either online or in-person schooling. The Families First Coronavirus Response Act and the Pandemic Unemployment Assistance program provide some benefits to parents unable to work due to child-care responsibilities connected to school closures, but BloombergLaw reports that Thursday’s guidance means parents concerned about the virus who choose the offered remote schooling plan forego those benefits.
In a Wednesday Law360 article, AFL-CIO General Counsel Craig Becker discussed the NLRB’s recent decision in Browning-Ferris Industries of California Inc, arguing it reflects the Board’s ideological transformation and hostility for the Obama-era NLBR’s precedent. Teamsters Local 350 first brought the matter concerning a joint-employer standard to the Obama-era NLRB in 2014, and remained a party as the dispute was appealed to the D.C. Circuit and remanded to the current Board. Becker notes that in ruling against the Teamsters claim, the Board referred to the inadequacy of Obama-era Board’s argument. Becker contends that mistakenly situating the Obama Board as an adverse party betrays the Board’s ideological commitment to reverse Obama-era labor precedents—a commitment Becker also locates in the Board’s refusal to engage the facts and arguments the Teamsters presented.